State Of Washington, V. Tien Lam ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STATE OF WASHINGTON,
No. 83929-2-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
TIEN LAM,
Appellant.
HAZELRIGG, A.C.J. — Tien Lam was charged with two counts of possession
of a controlled substance with intent to manufacture or deliver (PWI) arising from
separate incidents, and one count of possession of drug paraphernalia, a
misdemeanor. Lam argues he was unlawfully seized and the court erred in
denying his motion to suppress evidence obtained as a result of that seizure. He
further avers the trial court erred in denying his motion to sever the two counts of
PWI, only one of which resulted in conviction at trial, and raises claims of
prosecutorial misconduct in closing argument. He also challenges the sufficiency
of the evidence as to the conviction for possession of drug paraphernalia. Because
the record evinces no error, we affirm.
FACTS
On November 29, 2021, Snohomish County Sheriff’s Office (SCSO) Deputy
Jason Harris arrested Tien Lam, a Vietnamese man, 1 for possession of drug
1 In the trial court, Lam self-identified as “Vietnamese,” thus, we adopt his language for
purposes of our analysis herein.
No. 83929-2-I/2
paraphernalia (PDP) under the Snohomish County Code (SCC) and searched him
incident to arrest which resulted in the discovery of additional evidence of drug
crimes. On December 21, 2021, Harris arrested Lam again after he arranged a
controlled drug purchase over the phone and Lam appeared at the agreed upon
meeting place. The State ultimately charged Lam with two counts of possession
of a controlled substance with intent to manufacture or deliver (PWI), one each
from the November and December arrests, and one count of PDP, a simple
misdemeanor, resulting from the November arrest. 2
Prior to trial, Lam moved to sever the two PWI counts under CrR 4.4 and
argued that their joinder would result in prejudice. He also filed a CrR 3.6 motion
to suppress evidence that was obtained as a result of the initial contact with law
enforcement in November on the basis that he was unlawfully seized, arrested,
and searched in violation of article I, section 7 of the state constitution and the
Fourth Amendment to the United States Constitution. The State opposed both
motions. After an evidentiary hearing where the court heard testimony from Harris
and argument from the parties, the trial court denied both of Lam’s motions. Lam
renewed his motion to sever once before trial in his motions in limine and again at
the conclusion of the State’s case in chief. The trial court denied each renewal of
the motion.
The case proceeded to trial, after which the jury found Lam guilty of one
count of PWI based on the December incident and PDP based on the November
incident. The jury acquitted Lam of the PWI charge from the November arrest.
2 The misdemeanor was added as count 3 in an amended information filed approximately
one month after Lam was originally charged with the two counts of PWI.
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Following the verdict, Lam filed a motion for arrest of judgment and to dismiss
count 3 (PDP) “based upon insufficient evidence” and a separate motion for a new
trial on both the crimes of conviction due to prosecutorial misconduct. These
motions were denied by the trial court which entered findings of fact and
conclusions of law on both rulings.
Lam timely appealed.
ANALYSIS
I. Motion To Suppress Under CrR 3.6
Lam assigns error to the denial of his motion to suppress evidence obtained
pursuant to his arrest on November 29, 2021. According to Lam, the officers
unlawfully seized him moments before the arrest when they approached the
vehicle in which he was a passenger. In other words, Lam contends that he was
unlawfully seized by officers prior to having any contact or interaction with those
officers. Harris testified at the CrR 3.6 hearing that he observed Lam approach a
parked vehicle, receive what appeared to be cash from the driver, and enter the
rear passenger compartment before it drove to a nearby parking lot and that Harris
approached the vehicle because of these observations. At oral argument before
this court, when asked to clarify whether his position was that officers would need
to have a reasonable articulable suspicion before even walking up to the car to
look inside the back window, counsel for Lam responded, “Absolutely.” 3
3 Wash. Ct. of Appeals oral argument, State v. Tien Lam, No. 83929-2-I (Sept. 28, 2023),
at 7 min., 38 sec., video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-2023091225/?eventID=2023091225.
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“It is well settled that article I, section 7 of the Washington Constitution
provides greater protection to individual privacy rights than the Fourth
Amendment.” State v. Jones, 146 Wn.2d 328, 332, 45 P.3d 1062 (2002). “Article
I, section 7 is a jealous protector of privacy” and it provides that “[n]o person shall
be disturbed in his private affairs, or his home invaded, without authority of law.”
State v. Valdez, 167 Wn.2d 761, 777, 224 P.3d 751 (2009). “This provision
protects ‘those privacy interests which citizens of this state have held, and should
be entitled to hold, safe from governmental trespass absent a warrant.’” State v.
Rankin, 151 Wn.2d 689, 694-95, 92 P.3d 202 (2004) (quoting State v. Myrick, 102
Wn.2d 506, 511, 688 P.2d 151 (1984)). Thus, the State must obtain “a warrant for
arrests, searches and seizures subject only to a few, limited exceptions.” Myrick,
102 Wn.2d at 510. When an individual moves to suppress evidence based on a
police encounter, “we must first determine whether a warrantless search or seizure
has taken place and, if it has, whether the action was justified by an exception to
the warrant requirement.” Rankin, 151 Wn.2d at 695.
A. Lam’s Seizure by Law Enforcement
Our jurisprudence has long recognized that “‘[n]ot every encounter between
an officer and an individual amounts to a seizure.’” State v. Armenta, 134 Wn.2d
1, 10, 948 P.2d 1280 (1997) (quoting State v. Aranguren, 42 Wn. App. 452, 455,
711 P.2d 1096 (1985)). Under article I, section 7, a seizure occurs “‘only when, by
means of physical force or a show of authority, [a person’s] freedom of movement
is restrained. . . . There is a ‘seizure’ when, in view of all the circumstances
surrounding the incident, a reasonable person would have believed that [they
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were] not free to leave.’” State v. Young, 135 Wn.2d 498, 509-10, 957 P.2d 681(1998) (quoting State v. Stroud, 30 Wn. App. 392, 394-95, 634 P.2d 316 (1981)).
While the race and ethnicity of an individual are among the “many relevant
circumstances that must be considered,” they are “certainly not dispositive.” State
v. Sum, 199 Wn.2d 627, 638, 654, 511 P.3d 92 (2022). 4 Rather, the test “is a
purely objective one, looking to the actions of the law enforcement officer.” Young,
135 Wn.2d at 501. In Sum, our Supreme Court recently clarified one aspect of the
seizure inquiry as follows:
For purposes of this analysis, an objective observer is aware that
implicit, institutional, and unconscious biases, in addition to
purposeful discrimination, have resulted in disproportionate police
contacts, investigative seizures, and uses of force against Black,
Indigenous, and other People of Color (BIPOC) in Washington.
199 Wn.2d at 631.
Whether an individual has been seized is a mixed question of law and fact.
Armenta, 134 Wn.2d at 9. “‘The resolution by a trial court of differing accounts of
the circumstances surrounding the encounter are factual findings entitled to great
deference,’ but ‘the ultimate determination of whether those facts constitute a
seizure is one of law and is reviewed de novo.’” Id. (quoting State v. Thorn, 129
4 In Sum, our Supreme Court noted that it has “never held that the race and ethnicity of the
allegedly seized person are not relevant circumstances” in the seizure analysis. 199 Wn.2d at 637.
Moreover, as the court pointed out, “when considering analogous issues relating to police
encounters, the United States Supreme Court has held that objective demographic factors, such
as a defendant’s race and age, are relevant considerations.” Id. at 641-42 (citing United States v.
Mendenhall, 446 U.S. 544, 558, 100 S. Ct. 1870, 64 L. Ed. 2d 497 (1980)). See also United States
v. Washington, 490 F.3d 765, 773 (9th Cir. 2007) (applying test for seizure under Fourth
Amendment and considering defendant’s race among the totality of the circumstances by noting
“the publicized shootings by white Portland police officers of African Americans”).
Thus, while our Supreme Court had not expressly acknowledged the logical deduction that
race and ethnicity are circumstances to be factored in when reviewing the totality of the
circumstances under the seizure analysis prior to Sum, these are not new considerations.
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Wn.2d 347, 351, 917 P.2d 108 (1996), overruled on other grounds by State v.
O’Neill, 148 Wn.2d 564, 62 P.3d 489 (2003)). “The rule in Washington is that
challenged findings entered after a suppression hearing that are supported by
substantial evidence are binding, and, where the findings are unchallenged, they
are verities on appeal.” O’Neill, 148 Wn.2d at 571. The person alleging unlawful
seizure has the burden of proving they were seized. Id. at 574.
We first address Lam’s contention that the trial court relied on two “improper
factors” in its seizure analysis, his presence in a high crime area and Harris’
knowledge of Lam’s criminal history. Lam claims that courts cannot consider those
factors when determining whether a seizure has occurred. His argument is
unpersuasive and contradicted by controlling case law.
As our Supreme Court has explained, “A history of the same or similar
crimes may be helpful in determining probable cause, but without other evidence,
it also falls short of probable cause to search.” State v. Neth, 165 Wn.2d 177, 185-
86, 196 P.3d 658 (2008). Even when the officer is aware of criminal activity from
years prior, committed or suspected, that information is still relevant to this
analysis. See State v. Hobart, 94 Wn.2d 437, 446, 617 P.2d 429 (1980). The
court has also clearly noted that the location of the alleged seizure is another
circumstance to be considered; “information such as being in a high drug crime
area” is a relevant consideration for probable cause. Neth, 165 Wn.2d at 185 n.3.
Again, we consider “all the circumstances” when determining whether a seizure
has occurred. Rankin, 151 Wn.2d at 695 (emphasis added); see also Sum, 199
Wn.2d at 648 (“[T]here is a need to reiterate that the seizure inquiry depends on
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the totality of the circumstances.” (emphasis added)). We decline Lam’s invitation
to arbitrarily redefine the “totality of the circumstances.”
After the suppression hearing, the trial court entered its order on the CrR
3.5 and 3.6 motions and defense motion to sever in which it set out the facts that
were uncontested by the parties as well as the facts it resolved and conclusions of
law with respect to each motion. The following were identified as undisputed facts
regarding the November incident, none of which are challenged on appeal:
On November 29, 2021, just before noon, Deputy Harris was
on patrol . . . at the intersection of Highway 99 and Airport Road when
he observed [Lam] walking in the parking lot at Home Depot. Deputy
Harris observed [Lam] approach a blue BMW passenger car and
engage the driver in a conversation. Using binoculars, Deputy Harris
observed the driver of the vehicle hand [Lam] what appeared to be
cash which [Lam] immediately put into his bag. [Lam] got into the
rear driver side seat of the vehicle which then drove a little distance
away and parked in a stall in the Wendy’s parking lot.
Deputy Harris informed Sergeant Koster, who was also on
patrol in a separate vehicle at that location, that he believed he had
just witnessed a hand to hand drug transaction. The deputies
decided to contact the parked BMW. Deputy Harris drove up to the
BMW and parked his vehicle about a car width back from the BMW.
Sgt. Koster approached the vehicle from a different direction and
parked his vehicle within 6 to 8 feet from the front of the BMW. The
deputies did not have their emergency lights activated and their
vehicles did not block the exit path of the BMW which could have
driven away by moving forward or backward in reverse.
Deputy Harris walked up to the driver side rear passenger
compartment of the BMW and through the window observed [Lam]
in the rear passenger compartment with a satchel in his lap. In the
open satchel, Deputy Harris observed a crumpled-up tin foil with burn
marks on it. From his training and experience, Deputy Harris knows
that tinfoil is commonly used to ingest M-30 pills.[5] Deputy Harris was
aware that the user would place the pill on top of the foil and apply a
lighter below the foil. As the pill gets heated through the foil, it
releases narcotic fumes which the user then ingests using a straw
5 “M-30 pills” were originally oxycodone 30mg tablets, but counterfeit pills were
subsequently developed with varying amounts of fentanyl. See Drug Fact Sheet,
DRUG ENFORCEMENT ADMIN. (2021), https://www.dea.gov/sites/default/files/2021-05/Counterfeit%
20Pills%20fact%20SHEET-5-13-21-FINAL.pdf.
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like object or pipe called a tooter. The melting pill leaves a residue
referred to as “snail trails” on the inside of the foil while the outside
of the foil has burn marks from the torch lighter being applied to the
foil. Deputy Harris was aware that a crumpled or folded tin foil with
burn marks was indicative of recent drug use or future drug use.
Deputy Harris placed [Lam] under arrest for possession of
drug paraphernalia. A search of [Lam]’s bag which he had on him
incident to arrest revealed the crumpled piece of tin foil (which had
part of an M-30 pill on it,) methamphetamine, and thousands of
dollars in small cash bills, which from the deputy’s training and
experience was consistent with drug dealing.
Relying on the objective observer standard articulated in Sum, Lam insists
that he “was seized when the police approached the BMW and before the police
saw the foil in his satchel.” According to Lam, “At no point after the police started
approaching the BMW would an objective observer believe Lam could leave.” This
is so, Lam contends, because he is a person of color who was known to Harris
and “[a] person of color, known to the police does not walk away.” While we agree
that Lam’s race and ethnicity are relevant considerations, they are by no means
the only ones that we consider. Sum, 199 Wn.2d at 654.
Here, the undisputed facts establish that Harris and Koster drove to the
Wendy’s parking lot and parked their vehicles without either activating their
emergency lights or blocking the BMW’s exit. Moreover, there was no interaction,
verbal or physical, between the officers and Lam until Harris saw the crumpled-up
foil with burn marks on it through the vehicle window, ordered the occupants out
of the BMW, and placed Lam under arrest pursuant to the county code. Under
article I, section 7, a seizure requires that “law enforcement’s display of authority
or use of physical force” causes a person to believe they are not free to leave,
Sum, 199 Wn.2d at 653, and though the degree of authority or force required may
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fluctuate depending on the totality of the circumstances, the mere approach of the
officers in this situation falls plainly short of an unlawful seizure. Perhaps more
critically, the record does not establish that Lam was even aware of approaching
officers until the moment he was observed with the drug paraphernalia and placed
under arrest. On appeal, Lam does not engage with this additional aspect of the
seizure analysis or otherwise demonstrate how he could have been seized at the
moment of the officers’ approach to the BMW if he was not, in fact, aware of their
presence. Accordingly, the trial court did not err in finding that Lam was not seized
until Harris observed the drug paraphernalia in the satchel in Lam’s lap through
the vehicle window and placed him under arrest.
B. Findings on Probable Cause To Arrest Lam
Lam next challenges multiple findings underlying the trial court’s conclusion
that Harris had probable cause to arrest him for suspicion of PDP under the
Snohomish County Code. After determining that Lam was not seized at the point
the officers approached the BMW, the trial court entered the following findings as
establishing probable cause for Lam’s arrest:
On November 29, 2021, Deputy Harris observed what he recognized
as a hand-to-hand drug deal between [Lam] and the driver of the
BMW. He then observed [Lam] get into the vehicle which drove a
short distance away and parked in a parking lot in an area known for
its high drug use and drug dealing. From prior contacts with [Lam],
the deputy was aware [Lam] sold and used drugs. Deputy Harris
observed the crumpled tin foil with burn marks in the satchel of [Lam]
while he was sitting in the rear of the parked BMW with other
occupants. Deputy Harris was aware, based on his training and
experience, that tin foil is commonly used by individuals to ingest
drugs. He also knew that the process which involves the application
of a lighter to the foil to melt the narcotic, leaves burn marks on the
outside of the foil. When Deputy Harris observed the crumpled foil
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with burn marks in [Lam]’s satchel, he had probable cause to believe
that [Lam] was in possession of drug paraphernalia and that the
crumpled tin foil with burn marks was indicative of recent drug use or
that the tin foil was possessed by [Lam] with the intent to use it for
ingesting drugs. Possession of drug paraphernalia with intent to use
it is a misdemeanor under SCC 10.48.020.
Lam challenges the trial court’s findings that Harris witnessed a “hand-to-hand”
drug deal and that the piece of foil Harris saw in Lam’s bag provided a basis for
seizure. Challenged findings are binding if supported by substantial evidence,
which exists if the evidence is “sufficient to persuade a fair-minded, rational person
of the finding’s truth.” O’Neill, 148 Wn.2d at 571; State v. Stewart, 12 Wn. App. 2d
236, 240, 457 P.3d 1213 (2020).
At the suppression hearing, Harris testified to his training and experience
with narcotics investigations, familiarity and previous contacts with Lam, and the
events surrounding the arrest on November 29. Based on Harris’ experience,
drugs are normally paid for in cash because “narcotics dealers usually don’t have
access to things like credit card machines and an actual business front for things
like that. Usually it’s hand-to-hand sales, especially to low-level users. It’s going to
be cash.” At the time of his testimony, Harris stated that he had conducted
“dozens” of narcotics investigations and was a member of the “Directed Patrol Unit”
within the SCSO, “a police unit that focuses on high crime areas.” According to
Harris, one of the high crime areas where he has been specifically directed to patrol
is Highway 99 and Airport Road. Harris stated that drug use is “rampant” in that
location and he confirmed that he had observed drug deals occur and watched
people openly using drugs there.
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Prior to November 2021, Harris had contacts with Lam. He testified that
“[o]ne time I saw him on a traffic stop when he was arrested. And then maybe a
couple of other times I have talked to other deputies about him or seen him at
Airport and Highway.” Harris was aware that Lam had been previously convicted
of drug charges and recalled that, on February 17, 2021, he contacted Lam who
ultimately provided the following written statement: “‘My name is Tien Lam. I sell
and use drugs.’”
Harris then testified with regard to the contact that occurred on November
29, 2021. He explained that he was working and stationed at the intersection of
Highway 99 and Airport Road. That afternoon, Harris recognized Lam walking in
the parking lot of Home Depot, and observed the following interaction:
I saw a blue BMW passenger car pull into the parking lot. Parked. I
saw [Lam] walk up to the car. It seemed like they conversed for a
moment back and forth. The white male driver of the car handed
[Lam] what appeared to be cash. He quickly put it in his little satchel,
side bag, and then got in the rear passenger—or the rear driver’s
side of the car.
After Lam entered the BMW, Harris stated that the “BMW drove towards Home
Depot, kind of looped back around, and then parked just south of Wendy’s. Harris
then drove to the area where the BMW was parked, but testified that he neither
pulled the BMW over nor caused it to stop as it “was stopped before [he] got there.”
Harris explained that Koster, who was in a separate vehicle, also parked in the
area, but they neither turned on their emergency lights nor blocked the BMW in
any way.
Harris then got out of his vehicle and approached the driver’s side rear
passenger door of the BMW and looked into the window. At this point, he saw
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Lam sitting in the BMW “with his satchel on his lap” and “observed that [Lam’s]
satchel was open, horizontal zip, and [Harris] observed crumpled[-]up foil with a
burn mark on it.” According to Harris, based on his training and experience, tinfoil
is oftentimes used “to ingest M-30s,” which he clarified are pills that contain
fentanyl. He further explained that the burn marks often arise as follows:
The user employs a torch-style lighter below the foil, which is flat.
They then put the pill on top of the foil. And while they are doing that,
they also employ what is referred to as a “tooter,” which is a usually—
it’s a makeshift pipe, which is usually made out of a straw or a broken
pen or some other cylindrical long device. And when the pill is super-
heated on the foil, it releases narcotic fumes. And that creates the
burn marks as the pill slides along the foil.
Harris confirmed that the foil with burn marks that he saw in Lam’s bag was
consistent with such usage. Harris also explained that
most of the time with narcotics when they are done with or have just
smoked from that, they will either crumple it up or fold it up to save it
for later. And because of the process of smoking the narcotics off of
it, that is when you get the—some people refer to it as “snail trails”
of the pill going along, along the foil. That would be on the inside. On
the outside of the foil there would be burn marks from the torch-style
lighter going back and forth on it.
Accordingly, Harris “decided to place him under arrest for possession of drug
paraphernalia.”
Sufficient evidence supports the finding that “Harris observed what he
recognized as a hand-to-hand drug deal between [Lam] and the driver of the
BMW.” Harris had experience with narcotics investigations and was aware that
cash is normally used for drug transactions. He was also familiar with Lam who
had previously provided a statement, that said, “I sell and use drugs.” Moreover,
the incident occurred in an area known for “rampant” drug activity which was a
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point of focus for the SCSO Directed Patrol Unit, and Harris directly observed Lam
getting into the BMW and the driver handing Lam “what appeared to be cash”
before the car drove to Wendy’s and parked. Harris testified that he observed or
recognized conduct he believed, based on his training and experience, to be
consistent with a hand-to-hand drug transaction. The court’s finding is supported
by substantial evidence. 6
Lam also assigns error to the trial court’s finding which he characterizes as
conveying the idea “that seeing a crumpled piece of foil in [] Lam’s satchel provided
an additional basis to seize him.” Contrary to Lam’s framing, this item was not
found to be an “additional basis” to seize him; as the trial court’s findings make
clear, it was not until Harris saw Lam in possession of a crumpled up piece of foil
with burn marks that probable cause existed to arrest Lam. To the extent that Lam
challenges whether this finding amounted to probable cause for his arrest, this
court reviews that issue de novo. State v. Grande, 164 Wn.2d 135, 140, 187 P.3d
248 (2008).
For this warrantless arrest to be deemed lawful, the State was required to
establish probable cause that a crime had been or was being committed. Id. at
141. “Probable cause exists where the facts and circumstances within the
arresting officer’s knowledge and of which the officer has reasonably trustworthy
information are sufficient to warrant a person of reasonable caution in a belief that
6 We note, however, that the phrasing of this finding could be read as resolving a question
of fact for the jury; whether the conduct Harris observed was, in fact, a hand-to-hand drug
transaction, which went directly to the PWI charge set out in count 1. While it is clear based on the
subsequent proceedings that this was not the court’s intention, great care should be taken in the
phrasing of findings to avoid any such confusion.
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an offense has been committed.” State v. Terrovona, 105 Wn.2d 632, 643, 716
P.2d 295 (1986). To meet this burden, Harris was required to have a reasonable
articulable suspicion that Lam was involved in criminal activity. See Grande, 164
Wn.2d at 141. As Harris’ testimony shows, he did.
According to Lam, the crumpled tinfoil with burn marks on it did not
constitute drug paraphernalia under SCC 10.48.020 because the “primary design
function of foil is not for drug use.” In the alternative, he contends that “[m]ere
possession of drug paraphernalia is not a crime.” We reject both arguments.
First, SCC 10.48.010 defines “drug paraphernalia” as follows:
all equipment, products, and materials of any kind whose primary
design function is for use in planting, propagating, cultivating,
growing, harvesting, manufacturing, compounding, converting,
producing, processing, preparing, testing, analyzing, packaging,
repackaging, storing, containing, concealing, injecting, ingesting,
inhaling or otherwise introducing into the human body unlawful
drugs, including but not limited to controlled substances as defined
by chapter 69.50 RCW.
(Emphasis added.) The use of the disjunctive “or” in the plain language of the
code establishes that “primary design function” as used in the definition of drug
paraphernalia captures use in a variety of cultivation, creation, preparation, or
storage activities, as well as “otherwise introducing into the human body unlawful
drugs.” Further, the listed examples of “drug paraphernalia” plainly show that the
“primary design function” is not required to be for drug use; rather, the product
must either be designed for drug use or intended for such use. See SCC
10.48.010(11). Among others, more specific examples of drug paraphernalia listed
in the county code include spoons, blenders, bowls, containers, and balloons; all
items whose manufacturer likely designed them for purposes far removed from the
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preparation, storage, or ingestion of controlled substances, but the county
expressly included nonetheless.
To determine whether an object constitutes drug paraphernalia, courts are
explicitly directed to consider all “logically relevant factors.” SCC 10.48.010.
Noticeably absent from the description of the item in Lam’s briefing, testimony from
the trial court and photo exhibits introduced at trial establish that the foil Lam
possessed was not only crumpled, but contained visible burn marks. Harris
testified that his training and experience investigating drug crimes led him to
conclude that the clearly visible burn marks on the foil in Lam’s possession had
resulted from use as drug paraphernalia, specifically for the consumption of
drugs. 7 Accordingly, the piece of foil at issue falls within the broad definition of
“drug paraphernalia” under the SCC.
Second, SCC 10.48.020 does not punish “mere possession.” As this court
has already recognized, SCC 10.48.020 “prohibits possession of drug
paraphernalia with intent to use.” State v. Fisher, 132 Wn. App. 26, 28, 130 P.3d
382 (2006) (emphasis added). Although possession alone is insufficient to support
a criminal conviction under state law, 8 “evidence indicating the drug paraphernalia
had been used to ingest or inhale a controlled substance will support probable
cause for arrest.” State v. Neeley, 113 Wn. App. 100, 108, 52 P.3d 539 (2002).
As Harris explained in detail based upon his training and experience, the condition
7 Harris also testified that upon unfolding the piece of foil after it was seized, he observed
that it contained a partial blue pill with an “M” on one side and a “30” on the other. The subsequent
search of the BMW resulted in the seizure of a plastic bag that contained 112 blue pills with similar
markings that were sent to the state crime lab and tested positive for fentanyl.
8 Throughout briefing, Lam conflates the case law concerning the state crime of unlawful
use of drug paraphernalia under RCW 69.50.102 and the SCC under which Lam was actually
arrested, charged, and convicted.
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of the foil at issue here (crumpled shape and clearly visible burn marks) indicated
that it had been used and was intended for drug use. This was confirmed by the
discovery of the partial pill that was folded inside the foil and matched those which
later tested positive for fentanyl.
II. Motion To Sever Under CrR 4.4
Lam argues that the trial court erred in denying his motion to sever counts
1 and 3 (November 2021 PWI and PDP) from count 2 (December 2021 PWI). We
disagree.
This court “review[s] the denial of a motion to sever for manifest abuse of
discretion.” State v. Medina, 112 Wn. App. 40, 52, 48 P.3d 1005 (2002). “A
manifest abuse of discretion arises when ‘the trial court’s exercise of discretion is
manifestly unreasonable or based upon untenable grounds or reasons.’” State v.
Lile, 188 Wn.2d 766, 782, 398 P.3d 1052 (2017) (internal quotation marks omitted)
(quoting State v. Darden, 145 Wn.2d 612, 619, 41 P.3d 1189 (2002)). “Defendants
seeking severance have the burden of demonstrating that a trial involving both
counts would be so manifestly prejudicial as to outweigh the concern for judicial
economy.” State v. Bythrow, 114 Wn.2d 713, 718, 790 P.2d 154 (1990).
Under CrR 4.3, multiple offenses may be joined with each offense that
constitutes a separate count when those offenses are either “of the same or similar
character, even if not part of a single scheme or plan,” or “based on the same
conduct or on a series of acts connected together or constituting parts of a single
scheme or plan.” CrR 4.3(a)(1), (2). Pursuant to CrR 4.4(b), trial courts “shall
grant a severance of offenses whenever before trial or during trial with consent of
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the defendant, the court determines that severance will promote a fair
determination of the defendant’s guilt or innocence of each offense.”
“Prejudice may result from joinder if the defendant is embarrassed in the
presentation of separate defenses, or if use of a single trial invites the jury to
cumulate evidence to find guilt or infer a criminal disposition.” State v. Russell,
125 Wn.2d 24, 62-63, 882 P.2d 747 (1994). To determine whether the potential
for prejudice requires severance, the trial court must consider the following factors:
“(1) the strength of the State’s evidence on each count; (2) the clarity of defenses
as to each count; (3) court instructions to the jury to consider each count
separately; and (4) the admissibility of evidence of the other charges even if not
joined for trial.” Id. at 63.
In denying Lam’s motion to sever, the trial court considered each factor in
turn. First, it found the strength of the State’s evidence on each count to be
comparative. It noted that there were witnesses to both counts and civilian
witnesses were expected to testify to the drug deal alleged in count 1. Second,
the court determined that Lam could “maintain clear defenses to each count if the
counts are tried together” because his defense to both was general denial. Third,
it noted that the trial court would be able to instruct the jury using a standard jury
instruction that “a verdict on one count should not control the verdict on the other
count.” Fourth, the court explained that the evidence on each count would be cross
admissible in separate trials as either evidence of a common scheme or plan or
pursuant to the “res gestae exception[9] to ER 404(b).”
9 The res gestae exception to ER 404(b) allows the admission of “evidence of other crimes
or misconduct where it is ‘a link in the chain of an unbroken sequence of events surround the
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No. 83929-2-I/18
Lam renewed this motion twice, once before trial and once at the close of
the State’s case, though each of these subsequent versions were slightly modified
from the previous ones. 10 When asked why Lam was renewing the motion before
trial, Lam responded, “I guess it will depend whether these [civilian] witnesses
appear or not, but the strength of evidence may change if they don’t appear.”
Additionally, because the trial court had excluded the slip of paper with Lam’s
phone number and nickname on it that was found by Harris and that piece of
evidence “was going to be used to establish the basis of contact in [c]ount 2,” Lam
contended that the factual posture had changed. The State responded that the
counts were still comparable, whether or not the civilian witnesses testified, and
explained that it was relying on testimony from the officer to show that a phone
number was found and that “he believed it was attributed to [Lam].” The trial court
upheld the prior ruling.
After the State’s case in chief, Lam again renewed the motion to sever. Lam
challenged the comparability of counts 1 and 2 primarily on the basis that the
strength of the State’s evidence on both charges was no longer analogous.
According to Lam, because the civilian witnesses associated with count 1 did not
testify at trial and thus did not offer testimony “consistent with what they told police,”
“what happened in the car [was] a little bit murkier.” In denying the motion, the trial
charged offense . . . in order that a complete picture be depicted for the jury.’” State v. Acosta, 123
Wn. App. 424, 442, 98 P.3d 503 (2004) (internal quotation marks omitted) (quoting State v. Brown,
132 Wn.2d 529, 571, 940 P.2d 546 (1997)).
10 In his initial pretrial motion, Lam sought to sever counts 1 (November PWI) and 2
(December PWI). The State subsequently filed an amended information, which added count 3
(November PDP). Lam’s renewed motion to sever set out in his trial memo and motions in limine
expressly requested severance of counts 1 and 3 from count 2. In his halftime motion, Lam sought
reconsideration of the pretrial ruling on severance wherein the court appears to have focused on
severance of only counts 1 and 2 from each other.
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No. 83929-2-I/19
court did note that the lack of two civilian witnesses “may have weakened the
State’s case” but not “to the extent that these are not comparable.” Overall, the
court found “under all four factors that nothing much ha[d] changed.”11
While acknowledging that the jury acquitted him of count 1, Lam
nonetheless asserts that the jury likely considered his history of drug use when
deciding to convict him on count 2. Even assuming arguendo that Lam could “point
to specific prejudice” and assuming further that he could show the trial court’s
denial of his motion to sever was untenable, see Bythrow, 114 Wn.2d at 720, his
argument would still fall short of supporting the relief he seeks. “Defendants
seeking severance must not only establish that prejudicial effects of joinder have
been produced, but they must also demonstrate that a joint trial would be so
prejudicial as to outweigh concern for judicial economy.” Id. at 722. “To establish
error, [defendants] must also show that the prejudicial effect of trying all the counts
together outweighed the benefits of joinder.” State v. Bluford, 188 Wn.2d 298, 315,
393 P.3d 1219 (2017).
11 Lam had separately moved to exclude a slip of paper with a name and phone number
written on it that was found by Harris when he searched the vehicle involved in the November 29,
2021 arrest. Lam contended the document was inadmissible hearsay and, during the pretrial
hearing, the State agreed. In light of the trial court’s grant of Lam’s motion in limine to exclude that
piece of evidence, we note that the “res gestae” basis for cross admissibility of evidence set out in
the trial court’s initial severance analysis was largely undercut. This then calls into question the
court’s conclusion that “nothing much ha[d] changed” under the severance factors when ruling on
the renewed defense motion at halftime.
Because the slip of paper was found by Harris in the car that Lam was in at the time of his
arrest and Harris relied on the phone number on that paper to contact Lam and set up a controlled
buy on December 21, its exclusion weighs heavily against admissibility under the res gestae
exception. However, “[e]ven if separate counts would not be cross-admissible in separate
proceedings, this does not as a matter of law state sufficient basis for the requisite showing by the
defense that undue prejudice would result from a joint trial.” State v. Markle, 118 Wn.2d 424, 439,
823 P.2d 1101 (1992). As Lam does not satisfy his burden under Bythrow of establishing manifest
prejudice that outweighs the concern for judicial economy, his argument that the trial court erred in
joining these offenses necessarily fails. 114 Wn.2d at 718.
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No. 83929-2-I/20
In considering this challenge, it is noteworthy that the felony for which Lam
was convicted was the one wherein Harris arranged for a controlled buy and not
only spoke to the dealer, or at least a fixer, on the phone (Harris believed the
person he spoke to was Lam), but also later encountered Lam in the location
agreed upon for the transaction. In light of the strong evidence supporting this
charge, any improper consideration of Lam’s drug history by the jury is completely
speculative. Critically, not only does Lam fail to engage in the abuse of discretion
test, but he provides no argument in his opening brief nor in reply, as to the
“obviously important considerations of economy and expedition in judicial
administration.” Id. at 311 (quoting State v. Smith, 74 Wn.2d 744, 755, 446 P.2d
571 (1968), vacated in part on other grounds, Smith v. Washington, 408 U.S. 934,
92 S. Ct. 2852, 33 L. Ed. 2d 747 (1972)). “‘It is not the function of trial or appellate
courts to do counsel’s thinking and briefing,’” and we decline to do so here. State
v. Chapman, 140 Wn.2d 436, 453, 998 P.2d 282 (2000) (quoting Orwick v. City of
Seattle, 103 Wn.2d 249, 256, 692 P.2d 793 (1984)). As Lam does not engage with
the manifest abuse of discretion standard and fails to carry his burden of showing
how any prejudice would outweigh judicial economy here, he has not
demonstrated that the trial court erred in its denial of his motions to sever.
III. Prosecutorial Misconduct
Lam next seeks reversal based on the prosecutor’s alleged misconduct in
closing arguments, during which Lam says the prosecutor “denigrated his
attorney,” vouched for the State’s witness, “worked to shift the burden of proof to
the defense,” and “mischaracterized the evidence.”
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No. 83929-2-I/21
To prevail on a claim of prosecutorial misconduct, the “burden rests on the
defendant to show the prosecuting attorney’s conduct was both improper and
prejudicial.” State v. Fisher, 165 Wn.2d 727, 747, 202 P.3d 937 (2009). “Any
allegedly improper statements should be viewed within the context of the
prosecutor’s entire argument, the issues in the case, the evidence discussed in the
argument, and the jury instructions.” State v. Dhaliwal, 150 Wn.2d 559, 578, 79
P.3d 432 (2003). Prejudice depends on whether an objection was raised. When
there is an objection below, “the defendant must show that the prosecutor’s
misconduct resulted in prejudice that had a substantial likelihood of affecting the
jury’s verdict.” State v. Emery, 174 Wn.2d 741, 760, 278 P.3d 653 (2012).
However, when the defendant fails to object, the claim is waived “unless the
remark is deemed so flagrant and ill-intentioned that it evinces an enduring and
resulting prejudice that could not have been neutralized by an admonition to the
jury.” State v. Stenson, 132 Wn.2d 668, 726-27, 940 P.2d 1239 (1997). “If the
prosecutor’s misconduct is so flagrant that no instruction can cure it, a new trial is
the mandatory remedy.” State v. Graham, 59 Wn. App. 418, 426, 798 P.2d 314(1990).
A. Denigration of Defense Counsel
All of Lam’s claims of prosecutorial misconduct arise from the deputy
prosecutor’s statements in closing arguments. At the end of Lam’s closing, his
counsel asserted:
The prosecutor said Deputy Harris crossed all the T’s and dotted all
the I’s. I beg to differ. You have one witness with uncorroborated
testimony and no effort to corroborate it. No effort to record anything,
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No. 83929-2-I/22
no effort to test items for DNA or fingerprints and prove what you’re
saying is true. It’s the same deputy in the whole case. Just him.
In its rebuttal closing, the State responded:
Well, I suppose when there’s nothing else, you call someone a liar. I
suppose when there is nothing else to point to, you call someone a
liar. That’s what the defense has done. The defense wants you to
believe that Deputy Harris is a liar. He’s lying about all of this. He’s
lying about the interaction that he had in November. He’s lying about
the interaction he had in December. He’s lying that that phone call
[he] made even happened. But do you have anything in evidence to
question the credibility of Deputy Harris? Is there any reason to
question his credibility? Because he did something that you all did
before you were seated as a jury, he swore an oath to tell the truth,
to tell you exactly what happened. And he did just that. And there is
absolutely zero evidence to the contrary. There is nothing in
evidence to support the conclusion that he was lying to you.
While Lam does not directly acknowledge this in his opening brief, the record
clearly establishes that his trial counsel did not object, so the higher standard
applies to our review of this challenge. Lam argues that the prosecutor’s
comments constituted both denigration of defense counsel and improper vouching
for Harris.
In State v. Warren, the prosecutor told the jury that there “were a number of
mischaracterizations” in defense counsel’s argument and described it as a “classic
example of taking these facts and completely twisting them to their own benefit,
and hoping that you are not smart enough to figure out what in fact they are doing.”
165 Wn.2d 17, 29, 195 P.3d 940 (2008). The court found these statements to be
improper because they commented on the role of defense counsel, but that they
did not warrant reversal as Warren failed to object and did not meet the heightened
standard. Id. at 29-30. Here, the prosecutor’s statements also commented on
defense counsel’s role by stating “when there is nothing else to point to, you call
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No. 83929-2-I/23
someone a liar,” and the prosecutor repeatedly alleged that defense counsel was
calling Harris a liar. While the defense pointed to a lack of corroboration of Harris’
testimony and broadly attacked the investigation and the State’s case at trial, both
common and reasonable defense strategies, the prosecutor attributed words to
defense counsel that were not actually spoken and clearly mischaracterized the
defense argument. In criminal prosecutions, the attorney for the State “owes a
duty to defendants to see that their rights to a constitutionally fair trial are not
violated.” State v. Monday, 171 Wn.2d 667, 676, 257 P.3d 551 (2011). While they
may vigorously argue their case on behalf of the State, prosecutors must do so
within this framework of protecting the rights of the accused. Id. The prosecutor’s
mischaracterization of Lam’s critique of the State’s case against him was
misconduct. However, like Warren, Lam failed to object and thus the heightened
standard of prejudice applies. Because Lam does not show that these comments
were “so flagrant and ill-intentioned that no instruction could have cured them,” he
has failed to demonstrate entitlement to relief on this claim. See Warren 165
Wn.2d at 30.
B. Vouching for a Witness
According to Lam, the prosecutor improperly vouched for Harris by saying
that defense counsel was calling him a liar (implying defense counsel was wrong
in that regard and that Harris was truthful). “‘It is improper for the prosecution to
vouch for the credibility of a government witness. Vouching may occur in two ways:
the prosecution may place the prestige of the government behind the witness or
may indicate that information not presented to the jury supports the witness’s
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No. 83929-2-I/24
testimony.’” State v. Coleman, 155 Wn. App. 951, 957, 231 P.3d 212 (2010)
(quoting United States v. Roberts, 618 F.2d 530, 533 (9th Cir. 1980)). Prosecutors
are “permitted a reasonable latitude in arguing inferences from the evidence,
including references to a witness’s credibility.” Graham, 59 Wn. App. at 429.
However, comments on the credibility of a witness can neither be expressed as a
personal opinion nor be based on facts outside of the record. State v. Smith, 104
Wn.2d 497, 510-11, 707 P.2d 1306 (1985). Here, the prosecutor did not vouch for
Harris. Rather, the prosecutor made comments on defense counsel’s role in
arguing Lam’s theory of the case and focused on Harris’ testimony and facts within
the record. Thus, these statements did not constitute improper vouching. Even if
we determined otherwise, Lam has again failed to establish that these comments
were so flagrant and ill-intentioned that a curative instruction would not have
remedied any resulting prejudice. This is particularly true as the “jury is presumed
to follow the instruction that counsel’s arguments are not evidence.” Warren, 165
Wn.2d at 29.
C. Shifting Burden of Proof
Lam also contends the prosecutor committed misconduct when he
“repeatedly attempted to shift the burden of proof to the defense.” Lam points to
the following comments made by the prosecutor in rebuttal closing:
Now let’s talk about some of the other things. The defense wants you
to believe that the driver of the BMW and the passenger of the BMW,
well, they were drug dealers. They were drug dealers because they
had a knife. They had other people’s weapons—or they had a knife,
they had other people’s I.D.s, they had some foil, so they were the
drug dealers. They could have easily just been the drug dealers just
as easily as the defendant could have been. Why is that evidence
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No. 83929-2-I/25
sufficient for you to come to the conclusion that the driver and the
passenger are drug dealers, but the State’s evidence proving that
the defendant is a drug dealer isn’t sufficient? It’s just not. The
defense wants to point you and say that there is no corroboration that
any of this has happened. This is all someone’s words to you, but
there is corroboration.
The prosecutor proceeded to list the evidence from trial that he believed applied
to each count. Lam raised no objection. After the prosecutor noted the evidence
relevant to the various counts, he stated the following:
I don’t think there’s ever been anything in life that anybody is 100%
sure of. There is always, there’s always some kind of doubt or
question or lingering suspicion or something. That’s just the way life
works. But the law doesn’t require me, doesn’t require the State to
answer every single question. That’s not the way it works. We only
have to answer those three questions in the “to convict.”
...
The State has shown you beyond a reasonable doubt evidence
required to come to the conclusion of guilty on all three count[s]. And
I’m asking you to come to that conclusion when you deliberate.
These comments were not improper. “Arguments by the prosecution that
shift or misstate the State’s burden to prove the defendant’s guilt beyond a
reasonable doubt constitute misconduct.” State v. Lindsay, 180 Wn.2d 423, 434,
326 P.3d 125 (2014). “A prosecutor may commit misconduct if [they] mention[] in
closing argument that the defense did not present witnesses or explain the factual
basis of the charges, or if [they] state[] that the jury should find the defendant guilty
simply because [the defendant] did not present evidence to support [their] defense
theory.” State v. Jackson, 150 Wn. App. 877, 885, 209 P.3d 553 (2009). Here,
the prosecutor neither shifted nor misstated the State’s burden of proof. Although
he asked whether sufficient evidence could lead the jury to believe Lam’s story
that “the driver and the passenger are drug dealers,” the prosecutor did not tell the
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No. 83929-2-I/26
jury that it should find Lam guilty “simply because he did not present evidence to
support his defense theory.” See Id. Moreover, the prosecutor’s comments
focused on the evidence he believed supported the State’s theory of the case and
concluded by asserting the State had established beyond a reasonable doubt that
Lam was guilty of all counts. Once again, even if we agreed with Lam’s
characterization of the State’s argument in this regard, he has failed to
demonstrate that the identified comments rose to the heightened level required to
establish prejudice when the defendant fails to object. Accordingly, he does not
prevail on this claim.
D. Mischaracterization of the Evidence
Lam’s final argument as to prosecutorial misconduct is that the State
mischaracterized the record. Lam avers this was particularly prejudicial as the
alleged misconduct occurred during the State’s rebuttal so defense counsel was
unable to respond to it. However, the record establishes that defense reacted to
the misstatement by raising an objection and, in response, the court corrected the
State:
[PROSECUTOR:] Let’s talk about the Suboxone 12 that the defense
indicated the defendant was in possession of. That was never tested.
We have no idea if it was actually Suboxone. But if he was, he was
carrying ten boxes of it. Ten boxes of Suboxone. When is the last
time that you have been prescribed anything and you carried ten
boxes of it with you?
[DEFENSE]: Your Honor, I’m going to object to facts not in evidence.
THE COURT: Mr. [prosecutor], I don’t think there were boxes. In my
recollection, looking at the pictures, they are packages.
12 A brand name prescription drug used to treat people experiencing opiate addiction.
- 26 -
No. 83929-2-I/27
[PROSECUTOR]: Ten packages.
THE COURT: Please continue.
[PROSECUTOR]: Ten packages. Excuse me.
(Emphasis added.) Lam asserts that this was misconduct because the prosecutor
relied on evidence outside of the record and “displayed an insensitivity” to Lam’s
poverty. His argument fails.
Even if we were to agree that referencing “boxes” rather than “packages”
was improper in light of the prosecutor’s entire argument, Lam does not show
prejudice. Here, Lam must show that the prosecutor’s “boxes” comment, which
was contemporaneously corrected by the court, resulted in “a substantial likelihood
of affecting the jury’s verdict.” Emery, 174 Wn.2d at 760. This he cannot do and,
more critically, he does not even attempt to meet this standard in briefing. Whether
insensitive or mistaken, these comments do not constitute misconduct.
IV. Sufficiency of the Evidence for Possession of Drug Paraphernalia
Lam contends that the State presented insufficient evidence to support his
conviction on count 3, PDP. “When reviewing a challenge to the sufficiency of the
evidence, the test is whether, after viewing the evidence in the light most favorable
to the State, any rational trier of fact could have found the essential elements of
the crime beyond a reasonable doubt.” State v. Hosier, 157 Wn.2d 1, 8, 133 P.3d
936 (2006). “When the sufficiency of the evidence is challenged in a criminal case,
all reasonable inferences from the evidence must be drawn in favor of the State
and interpreted most strongly against the defendant.” State v. Salinas, 119 Wn.2d
192, 201, 829 P.2d 1068 (1992). The reviewing court considers the sufficiency of
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No. 83929-2-I/28
the evidence in light of the instructions given to the jury. State v. Jussila, 197 Wn.
App. 908, 921, 392 P.3d 1108 (2017).
Lam argues that by relying on the definition of “drug paraphernalia” from
SCC 10.48.010, which is narrower than the definition in RCW 69.50.102, the State
“took on a greater burden” and was required to prove that the “primary design
function” of tinfoil was for the use of drugs. He explains that the primary design
functions of aluminum foil are to store food and for engineering purposes.
However, as Lam was charged with PDP under SCC 10.48.020, the definition from
SCC 10.48.010 was appropriate. The court provided the definition verbatim in jury
instruction no. 16 and neither party objected. SCC 10.48.010 provides a non-
exhaustive list of factors to consider in the determination of whether an item is drug
paraphernalia, along with examples of items that are clearly not manufactured
expressly for drug use, like spoons, mixing bowls, and balloons, which nonetheless
may fall within the definition of drug paraphernalia under the county code.
Accordingly, Lam’s “primary design function” argument is without merit.
As previously established, the State introduced evidence that Lam was
found in possession of aluminum foil with burn marks on it that contained a portion
of a blue pill. This partial blue M-30 pill found inside the foil in Lam’s possession
was also in close proximity to a plastic bag containing 112 other blue M-30 pills
found on the floorboard where Lam was sitting which were seized and sent to the
state crime lab for analysis. 13 Forensic testing later confirmed that the bagged
blue M-30 pills seized from the floor of the rear passenger compartment contained
13 See SCC 10.48.010 (“In determining whether an object is drug paraphernalia, a court . .
. should consider . . . the proximity of the object to controlled substances.”).
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No. 83929-2-I/29
fentanyl. Other similar rectangular pieces of foil were also found on the floorboard
where Lam was sitting. The State established that Lam also possessed a “tooter,”
which Harris testified is an instrument made from a tubular object such as a broken
pen that is used to ingest fumes. Further, Harris specifically explained that the
tinfoil with burn marks found in Lam’s possession was similar to drug paraphernalia
he has seen before while on duty as a law enforcement officer.
When viewed in the light most favorable to the State, we conclude the
evidence is sufficient to support Lam’s conviction on count 3.
V. Victim Penalty Assessment
In supplemental briefing, Lam assigned error to the imposition of the victim
penalty assessment (VPA) in light of the amended version of RCW 7.68.035. Lam
was found indigent at sentencing and, pursuant to recent statutory amendment,
courts are no longer authorized to impose the VPA upon indigent defendants.
RCW 7.68.035(4). Accordingly, he requests this court strike the VPA from his
judgment and sentence. The State agrees that RCW 7.68.035 applies and
concedes error as to the imposition of the VPA. The amended version of RCW
7.68.035 applies to cases on direct appeal. See State v. Ellis, 27 Wn. App. 2d 1,
17, 530 P.3d 1048 (2023); see also State v. Wheeler, No. 83329-4-I, slip op. at 22
(Wash. Ct. App. Aug. 7, 2023) (unpublished), https://www.courts.wa.gov/opinions
/pdf/833294.pdf. 14 We remand for the trial court to strike the VPA from Lam’s
judgment and sentence.
14 Pursuant to GR 14.1(c), we may cite to unpublished cases as “necessary for a reasoned
decision.” We adopt the expanded reasoning set out in Wheeler as to the application of this
statutory amendment to cases on direct appeal.
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No. 83929-2-I/30
VI. Statement of Additional Grounds for Review
Lam submitted a statement of additional grounds for review (SAG) in which
he raises two issues. First, he states “one charge but they split make it 2.” Second,
Lam cites State v. Blake, 197 Wn.2d 170, 481 P.3d 521 (2021), and asks this court
to “squash all [his] old points.”
Under RAP 10.10, “the defendant may file a pro se statement of additional
grounds for review to identify and discuss those matters related to the decision
under review that the defendant believes have not been adequately addressed by
the brief filed by the defendant’s counsel.” RAP 10.10(a). We need not reconsider
“alleged errors [that] have been thoroughly addressed by counsel.” State v.
Thompson, 169 Wn. App. 436, 493, 290 P.3d 996 (2012). Further, this court “will
not consider a defendant’s statement of additional grounds for review if it does not
inform the court of the nature and occurrence of alleged errors.” RAP 10.10(c).
When reviewing the defendant’s statement of additional grounds, this court “is not
obligated to search the record in support of claims made” therein. Id.Because the precise nature of the first claim set out in Lam’s SAG is unclear,
we decline to reach it. 15 As to his second additional ground, Lam fails to identify
the specific nature of the prior convictions he argues should be excluded under
Blake, how Blake applies to each of those prior convictions, or otherwise explain
how his offender score or sentencing range would change as a result of their
exclusion. In the absence of any argument to inform this panel of the “nature and
occurrence” of any purported Blake errors, we decline to reach this claim.
15 In the event that this challenge goes to the denial of his severance motions, that issue
has been analyzed herein.
- 30 -
No. 83929-2-I/31
Lam has failed to establish any error that warrants reversal and we affirm
his convictions. However, we remand for the trial court to strike the VPA from the
judgment and sentence.
WE CONCUR:
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